United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-3356

___________________________ 

Ahmed Abdulkadir Mohamed

 Petitioner

v.

William P. Barr, Attorney General of the United States

 Respondent

____________

Petition for Review of an Order of the

Board of Immigration Appeals

____________ 

Submitted: October 22, 2020

 Filed: December 23, 2020 

____________ 

Before BENTON, SHEPHERD, and KELLY, Circuit Judges. 

____________

SHEPHERD, Circuit Judge.

 

Ahmed Mohamed, a native and citizen of Somalia, petitions for review of an 

order of the Board of Immigration Appeals (BIA) upholding the decision of an 

immigration judge (IJ), which denied Mohamed’s motion to reopen removal 

proceedings based on changed country conditions. For the following reasons, we 

deny the petition for review.
-2-

I. 

 

 Mohamed was admitted to the United States as a conditional lawful permanent 

resident on December 26, 2001, based on his marriage to a United States citizen. 

That status was terminated on April 6, 2006, because Mohamed failed to appear for 

an interview, which was scheduled for the purpose of removing the conditions on 

his permanent residence. On August 13, 2007, the Department of Homeland 

Security (DHS) initiated removal proceedings against Mohamed based on the 

termination of his lawful status. Mohamed failed to appear for his first scheduled 

hearing, but an IJ found inadequate proof of service and administratively closed the 

proceedings. DHS moved to recalendar the proceedings, and a master calendar 

hearing (a preliminary hearing for removal proceedings) ultimately took place on 

September 21, 2011. At that hearing, the IJ ordered Mohamed removed in absentia

based on his failure to appear at the prior hearing. On January 10, 2017, Mohamed 

filed a motion to reopen and rescind the in absentia order of removal. The IJ denied 

the motion, and Mohamed did not appeal the decision to the BIA.

On August 2, 2018, more than seven years after the 2011 final order of 

removal, Mohamed filed a second motion to reopen and sought asylum; withholding 

of removal; and protection under the Convention Against Torture (CAT). Mohamed 

sought this relief based on changed country conditions in Somalia: an expressly 

stated exception to the general 90-day time frame to file a motion to reopen removal 

proceedings. See 8 U.S.C. § 1229a(c)(7)(C). Mohamed alleged that he would be 

targeted by al-Shabaab and ISIS-Somalia because of his opposition to the 

establishment of an authoritarian state based on Sharia law; his religion as a 

moderate Muslim who opposes the extreme views held by both groups; and his 

perceived status as an American or Americanized Somali. He argued that he would 

be readily identified as an Americanized Somali due to his presence on Immigration 

and Customs Enforcement’s (ICE) failed December 2017 repatriation flight in which 
-3-

ICE attempted to remove 92 Somalis from the United States.1 Mohamed further 

alleged that al-Shabaab had more recently infiltrated the Somali government and had 

the increased capacity and power to carry out its threats towards individuals like 

Mohamed. 

On April 24, 2019, the IJ denied Mohamed’s motion to reopen in a written 

decision.2

 The IJ first discussed the various bars that Mohamed faced: the departure 

bar, under 8 C.F.R. § 1003.23(b)(1); and the time and number bars, under 8 U.S.C.

§ 1229a(b)(5)(C), (c)(6), (c)(7), and the accompanying federal regulations.3

 The IJ 

found that Mohamed’s motion was barred by each of the provisions. The IJ then 

moved on to Mohamed’s claim of changed country conditions, recognizing that if 

sufficiently established, the time and numerical bars would not apply. The IJ 

determined that the conditions in Somalia had not materially changed from the date 

of Mohamed’s 2011 removal order; that al-Shabaab was participating in the same 

type of violence prior to 2011 as Mohamed had alleged in his motion; that 

al-Shabaab had previously garnered significant governmental power; and that 

1

We detailed the events of this incident in Shire v. Barr, 967 F.3d 722, 724 n.1 

(8th Cir. 2020).

2

Mohamed’s motion was originally considered by a separate IJ. That IJ 

summarily dismissed the motion, but the BIA remanded the proceedings for a fully 

developed and reasoned decision. The same IJ issued a second summary decision 

denying Mohamed’s motion, which the IJ vacated shortly after discovering a conflict 

of interest. The motion was reassigned to a second IJ whose decision is now at issue. 

 3

The so-called “departure bar” prevents petitioners from reopening their 

removal proceedings when they have, subsequent to filing, departed from the United 

States either voluntarily or involuntarily. The IJ found that this bar applied to 

Mohamed because he sought asylum in Canada subsequent to filing his first motion 

to reopen. The “time bar” requires that petitioners file a motion for reconsideration 

or a motion to reopen within 30 and 90 days, respectively, of a final administrative 

order. If the petitioner was removed in absentia and can demonstrate “exceptional 

circumstances,” the petitioner can file a motion to reopen up to 180 days after such 

order. Finally, the “numerical bar” limits petitioners to only one motion to 

reconsider and one motion to reopen.
-4-

Mohamed had no particular notoriety due to his presence in ICE’s December 2017 

repatriation attempt. Accordingly, the IJ denied Mohamed’s motion to reopen.

Mohamed appealed the decision to the BIA, which issued a decision on 

October 4, 2019. The BIA agreed that Mohamed’s motion was both time- and 

number-barred but refrained from making any determinations concerning the 

application of a departure bar. The BIA found that the IJ did not clearly err in its 

determinations concerning Somalia’s changed country conditions and upheld the 

IJ’s decision, denying Mohamed’s motion to reopen. Mohamed then filed a petition 

for review in this Court on October 31, 2019. He subsequently filed a motion for 

emergency stay of removal, which this Court denied, and he was deported to Somalia 

on December 5, 2019.

II. 

Mohamed asserts that the BIA erroneously affirmed the IJ’s denial of the 

motion to reopen removal proceedings based on changed country conditions 

pursuant to 8 U.S.C. § 1229a(c)(7)(C) and 8 C.F.R. § 1003.23(b)(1), (4)(i). 

Specifically, Mohamed asserts that the BIA failed to consider (1) al-Shabaab’s 

increase in power from 2011 to 2018; (2) ISIS-Somalia’s emergence and growing 

violence from 2011 to 2018; and (3) the impact of Mohamed’s personal 

characteristics on changed country conditions. 

Generally, “[a]n alien may file one motion to reopen proceedings under [8 

U.S.C. § 1229a],” 8 U.S.C. § 1229a(c)(7)(A) (emphasis added), and such motion 

must be filed “within 90 days of the date of entry of a final administrative order of 

removal,” id. § 1229a(c)(7)(C)(i) (emphasis added). Accordingly, Mohamed’s 

motion to reopen is number- and time-barred, as it was his second motion and filed 

more than seven years after the final administrative order. However, these bars do 

not apply when the motion to reopen is “based on changed country conditions arising 

in the country of nationality or the country to which removal has been ordered, if 

[the] evidence [of such changed country conditions] is material and was not available 
-5-

and would not have been discovered or presented at the previous proceeding.” Id. 

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(1), (4)(i). The petitioner bears the 

burden of making a prima facia case that demonstrates “a change in country 

conditions since his initial hearing that materially affects his claim to relief.” Sharif 

v. Barr, 965 F.3d 612, 618 (8th Cir. 2020) (citing Zeah v. Lynch, 828 F.3d 699, 704 

(8th Cir. 2016)).

“We review decisions of the [BIA] denying motions to reopen or reconsider 

for abuse of discretion.” Shire v. Barr, 967 F.3d 722, 725 (8th Cir. 2020) (quoting

Habchy v. Gonzales, 471 F.3d 858, 861 (8th Cir. 2006)). The BIA abuses its 

discretion “where a decision is without rational explanation, departs from 

established policies, invidiously discriminates against a particular race or group, or 

where the agency fails to consider all factors presented by the alien or distorts 

important aspects of the claim.” Id. (citation omitted). “Though we ordinarily 

review only the BIA’s decision, ‘we also review the IJ’s decision as part of the final 

agency action’ if ‘the BIA adopted the findings or the reasoning of the IJ.’” Etenyi 

v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (citation omitted). 

While Mohamed frames his assertions as legal errors on the part of the BIA, 

his claims are best described as attacking the BIA’s factual determinations. 

“[E]xamining changed country conditions is a factual issue.” Sharif, 965 F.3d at 

620 n.2 (alteration in original) (citation omitted). As such, in reviewing factual 

determinations, we utilize the substantial evidence standard: “The agency’s ‘findings 

of fact are conclusive unless any reasonable adjudicator would be compelled to 

conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (citation 

omitted).

 

Mohamed first contends that the BIA failed to consider al-Shabaab’s growing 

power and influence in Somalia in its changed-country-conditions analysis. 

Mohamed argues that al-Shabaab has had a “parabolic” presence in Somalia, with 

its heights of power occurring in the late 2000s and now. See Pet’r’s Reply Br. 1-2. 

We have acknowledged the possibility that a petitioner could present evidence of a 
-6-

material “escalation of violence and tension” such that a finding of changed country 

conditions would be warranted. See Habchy, 471 F.3d at 867-68. However, the 

standard remains that the petitioner must establish that the country conditions at the 

time of his motion to reopen are materially different from those that existed at the 

time of his initial proceedings. See Sharif, 965 F.3d at 618; see also Zeah, 828 F.3d 

at 704 (“‘[E]vidence [that] reflects conditions substantially similar to those that 

existed at the time of [the first] hearing’ does not show a change in country 

conditions.” (second and third alterations in original) (citation omitted)). Here, the

IJ recognized al-Shabaab’s recent rise in power but concluded that the evidence 

reflected “country conditions substantially similar to those in place at the time 

[Mohamed] was ordered removed in 2011.” Admin. R. 99, ECF No. 4853065. The 

IJ described in detail al-Shabaab’s acts of violence occurring immediately prior and 

into 2011, while Mohamed presents only one reference that indicates that 

al-Shabaab’s power began to wane in 2011. Therefore, we do not find “any 

reasonable adjudicator would be compelled to conclude” that al-Shabaab’s presence 

in Somalia is materially different than existed in 2011 based on Mohamed’s 

evidence. Nasrallah, 140 S. Ct. at 1692. 

Mohamed next contends that the IJ and BIA failed to account for the 

emergence and growth of ISIS-Somalia in its determination. The IJ did account for 

the presence of ISIS-Somalia but ultimately determined that the “isolated 

references” in the record were insufficient to establish Mohamed’s claims. Admin. 

R. 98, ECF No. 4853065. Upon reviewing the record, we do not find that “any 

reasonable adjudicator could be compelled to conclude the contrary.” Nasrallah, 

140 S. Ct. at 1692.

 

Finally, Mohamed contends that the IJ and BIA did not appropriately consider 

his personal circumstances when determining whether the alleged changed country 

conditions were material. Specifically, he argues that he will be more susceptible to 

attack by al-Shabaab because he is “Westernized” and was involved in ICE’s failed 

repatriation flight to Somalia in 2017. However, the IJ concluded that Westernized 

Somalis face no greater threat of harm than existed at the time of Mohamed’s prior
-7-

proceedings in 2011. The IJ further determined that Mohamed failed to sufficiently 

show how his presence on the 2017 repatriation flight thrust him into “particular 

notoriety” thereby creating a greater risk of persecution. We considered this exact 

proposition in Shire, 967 F.3d at 726, and affirmed the IJ and BIA. After review of 

the record, we do not find that it compels a contrary conclusion in this case. 

Therefore, the IJ and BIA did not err in their determinations.

III. 

Accordingly, we deny the petition for review.

______________________________